Quinter v. Volkswagen of America

• Decision Date: 19 April 1982
• Docket Number: No. 81-1776,81-1776
• Citation: 676 F.2d 969
• Parties: Rodney W. QUINTER v. VOLKSWAGEN OF AMERICA, Volkswagen of Atlantic, Inc., Volkswagenwerk, A. G., Byron Bloch, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 969

676 F.2d 969

Rodney W. QUINTER v. VOLKSWAGEN OF AMERICA, Volkswagen of Atlantic, Inc., Volkswagenwerk, A. G., Byron Bloch, Appellant.

No. 81-1776.

United States Court of Appeals, Third Circuit.

Argued Jan. 11, 1982.

Decided April 19, 1982.

Henry H. Wallace, Wallace, Chapas & Gravina, Pittsburgh, Pa., for appellant.

Carl A. Eck, John E. Hall (argued) Meyer, Darragh, Buckler, Bebenek & Eck, Pittsburgh, Pa., for appellees.

Before HUNTER and HIGGINBOTHAM, Circuit Judges, and ACKERMAN, ^* District Judge.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This case involves an appeal from a Judgment and Order of the district court finding appellant Byron Bloch in civil contempt for violation of a Protective Order issued by the district court and assessing against Bloch a compensatory fine of $10,000. Bloch challenges the validity of the Protective Order, the applicability of the Order to him, and the district court's finding that he violated the Order.

We conclude that the narrow issue in this case requiring reconsideration by the district court is the fine assessed against Bloch. We remand for the district court to do so in accordance with our findings below.

I.

This case arises out of a lawsuit brought in 1976 by plaintiff Rodney Quinter against Volkswagen of America and Volkswagenwerk, A.G. (Volkswagen) to recover damages for injuries sustained in a 1974 accident involving a Volkswagen Beetle. ¹ Appellant Byron Bloch, an automobile safety design consultant was retained by Quinter and his counsel, Henry H. Wallace, as a consultant and expert witness.

On January 5, 1979, after a three-hour hearing, Judge Maurice B. Cohill, Jr. granted Quinter's Motion for an Order Compelling Production of Documents and Things for Inspection, Copying or Photocopying. At that same hearing the district court also granted Volkswagen's motion for a protective order to cover certain materials Volkswagen considered trade secrets. Bloch was involved in this hearing to the extent that he provided affidavits for Quinter's submission to the district court in opposition to Volkswagen's motion. The district court denied without a hearing Quinter's Motion for Reconsideration of January 18, 1979, and on January 23, 1979, entered the following order:

AND NOW, to-wit, this 23rd day of January, 1979, after careful consideration of the proposed Protective Order filed by the defendants above-named, pursuant to paragraph 5 of the Order of this Court dated January 5, 1979, said proposed order be and the same hereby is rejected as being unnecessarily burdensome and complex.

In lieu thereof, it is HEREBY ORDERED, ADJUDGED AND DECREED that items obtained by plaintiff or his counsel pursuant to discovery in this case are protected, and neither plaintiff nor his counsel shall themselves copy or permit others to copy said items or otherwise use them for any purpose other than that directly and reasonably related to the above-captioned case.

Order of the Court dated January 23, 1979, at App. 47a. ²

Pursuant to this Order, Volkswagen turned over to Wallace in March, 1979, a number of documents, including the document at issue in this appeal, a computerized index list of various crash tests and other tests performed by Volkswagen on its automobiles (Index List). During a visit to Pittsburgh in the summer or fall of 1979, Bloch was given the Index List and a copy of the Protective Order by Wallace.

On November 8, 1979, Bloch participated in an ABC television program called "20/20," which dealt with the crashworthiness of Volkswagen Beetles and the susceptibility of persons riding in Beetles involved in rear end collisions to serious injury. During the program Bloch noted that the Index List was the subject of a protective order and held it up before the television cameras for the viewing audience to see. The district court concluded that the viewing audience was probably unable to read the Index List, but that the narrator, Sylvia Chase, and the television cameramen probably were able to read it.

On December 26, 1979, Volkswagen filed a Motion for Sanctions in response to Bloch's appearance on "20/20." Judge Alan Bloch, to whom the case had been assigned in November, 1979, denied Volkswagen's motion on February 28, 1980. ³ Volkswagen then filed a Petition for a Rule to Show Cause for Adjudication of Civil Contempt for the alleged failure of Quinter, his counsel, Wallace, and Bloch to comply with the district court's Protective Order. Volkswagen charged in its petition that Bloch's use of the Index List on "20/20" was unrelated to Quinter's lawsuit against Volkswagen, and was thus a violation of the Protective Order.

On November 19, 1980, two days before the full evidentiary hearing prompted by Volkswagen's petition, it was revealed in Bloch's deposition testimony that Bloch had given the Index List to a lawyer in Florida named Anthony Provitola, who had hired Bloch as a consultant in another case against Volkswagen. At the evidentiary hearing on November 21, 1980 before Judge Cohill, to whom the case had again been assigned, the deposition testimony of Bloch was admitted into evidence and offered as part of Volkswagen's prima facie case against Bloch.

The district court concluded that Bloch violated the Protective Order in two ways: one, by using the Index List as a "stage prop" on "20/20," and two, by giving the Index List to Attorney Provitola. ⁴ Bloch was assessed a $10,000 fine to compensate Volkswagen for losses, by way of costs, expenses and attorneys fees, incurred because of Bloch's violation of the Protective Order.

II.

A. We need consider only two questions on this appeal: whether the district court's Protective Order was applicable to Bloch and, if so, whether, and to what extent, Bloch violated the Order. Bloch argues that the Protective Order, by its own terms, did not apply to him because he was only an expert witness and was neither the "plaintiff nor his counsel" referred to in the Order. Bloch, however, need not be expressly named in the Protective Order in order to be held liable for civil contempt. Thompson v. Johnson, 410 F.Supp. 633, 640 (E.D.Pa.1976), aff'd mem., 556 F.2d 568 (3d Cir. 1977). See also, Wright and Miller, Federal Practice and Procedure § 2960 at 589 (1973). A person who is not a party to a proceeding may be held in contempt if he or she has actual knowledge of a court's order and either abets the defendant or is legally identified with him. Thompson v. Johnson at 640, quoting Alemite Manufacturing Corp. v. Staff, 42 F.2d 832, 833 (2nd Cir. 1930).

There is no question that Bloch had actual knowledge of the Protective Order, as he was given a copy of the Protective Order by Quinter's counsel, Wallace. Bloch attempts to escape from under the scope of the Order by arguing that contradictory statements of the district court militate against finding him legally identified with Quinter and Wallace. ⁵ In his opinion of March 31, 1981, Judge Cohill found that "(t)he plaintiff and his counsel retained Bloch to serve as an expert in the litigation, thus making him their agent. We hold this relationship makes Bloch legally identified with the parties to our protective order." Quinter v. Volkswagen, No. 76-941 at 13. Prior to this finding, Judge Cohill had ruled from the bench, in respect to the contempt proceedings against Wallace, that

I don't think there's a respondeat superior issue here whereby Mr. Wallace is responsible for the actions of Mr. Bloch in the circumstances as related to me and, therefore, we're going to discharge the petition for the rule insofar as Mr. Wallace is concerned.

App. at 157a.

We interpret the district court's statements to mean merely that so far as any unlawful use of the Index List by Bloch Wallace would not be held liable on a theory of respondeat superior. Since Wallace put Bloch on notice as to the Protective Order by giving Bloch a copy of the Order, Bloch's subsequent unlawful use of the Index List was outside the scope of his employment as an expert witness for Quinter.

In Thompson v. Johnson, 410 F.Supp. 633 (E.D.Pa.1976), the plaintiff, an inmate in a state correctional institution, was seeking a contempt citation against persons who had not been parties to the original consent order. The original consent order provided that the superintendent of the State Correctional Institution at Graterford would insure that incoming "privileged" correspondence addressed to plaintiff would be opened only by plaintiff, though in the presence of his housing unit officer. The terms of the consent order apparently had been violated by, inter alia, Charles Batdorf, "the mailroom supervisor." The mailroom supervisor and several of the other persons cited for contempt were not parties to the original consent order. Apparently the defense was raised that since they had not been parties to the original order, they could not be held in contempt. In a thorough and exhaustive analysis of the cases, Judge Luongo noted:

A person is liable for civil contempt if he violates a court order with actual notice that the order has been issued. See United States v. Hall, 472 F.2d 261 (5th Cir. 1972); N. L. R. B. v. Crown Laundry and Dry Cleaners, Inc., 437 F.2d 290 (5th Cir. 1971); Universal Athletic Sales Co. v. Salkeld, 376 F.Supp. 514 (W.D.Pa.1974), vacated, 511 F.2d 904 (3d Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 46 L.Ed.2d 92 (1975); Farber v. Rizzo, 363 F.Supp. 386 (E.D.Pa.1973). It is not necessary that the person be formally served with the order, or that the violation be willful, Farber v. Rizzo, supra, or that there be intent to violate the court order. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599, 604 (1949); Woolfolk v. Brown, 358 F.Supp. 524, 534 (E.D.Va.1973); United States v. Ross, 243 F.Supp. 496 (S.D.N.Y.1965). In order for a person not a party to the proceeding to be found in contempt, he must have actual knowledge...